Dylan Robbins v. City of Medford

Plaintiff was seriously injured when he was hit by

a car while crossing South Riverside Avenue at its intersection

with Ninth Street in Medford. There are no traffic signals

controlling that intersection, but the City of Medford

has installed a crosswalk across South Riverside Avenue on

the south side of the intersection. Plaintiff was in that crosswalk

when he was hit, and he alleges that the city was negligent

by placing a crosswalk at that location and by omitting

certain safety features from the crosswalk’s design that, in

plaintiff’s view, would have averted his accident. On summary

judgment, the trial court concluded that the discretionary

immunity provision of the Oregon Tort Claims Act,

ORS 30.265(6)(c),1 bars plaintiff’s negligence claims against

the city and entered judgment for the city on those claims.2

We conclude that the trial court’s grant of summary judgment

was correct with respect to plaintiff’s challenge to the

city’s design decisions but that there are genuine issues of

material fact as to the plaintiff’s challenge to the city’s decision

to locate the crosswalk where it did. We therefore affirm

in part and reverse in part.

I. ISSUE PRESENTED

AND STANDARD OF REVIEW

We start by identifying what is—and is not—at

issue in this appeal, as well as the legal standards that govern

our review of the trial court’s resolution of the issues

presented.

First, what is at issue: In the complaint, plaintiff

alleges that the city was negligent in five different ways. Two

of the specifications of negligence, specifications 13(a) and

13(b), challenge the city’s decision to place the crosswalk

where it did. They allege that the city was negligent by:

1 ORS 30.265(6)(c) provides that a “public body and its officers, employees

and agents acting within the scope of their employment or duties * * * are immune

from liability for * * * [a]ny claim based upon the performance of or the failure to

exercise or perform a discretionary function or duty, whether or not the discretion

is abused.”

2 Plaintiff also asserted claims against two other defendants, the driver of

the car that hit him and the Medford Urban Renewal Agency. The claims against

those defendants are not at issue in this appeal.

Cite as 284 Or App 592 (2017) 595

“(a) Creating a marked, multi-lane crosswalk at the

South Riverside Avenue area where [plaintiff’s accident]

occurred; [and]

“(b) Failing to remove the marked crosswalk after having

been advised to do so by engineering staff.”

The remaining three specifications, specifications 13(c),

13(d), and 13(e), challenge the city’s design of the crosswalk.

They allege that the city was negligent by:

“(c) Failing to place traffic control devices adequate to

stop vehicles approaching the crosswalk before persons,

such as plaintiff, stepped into the crosswalk to cross the

street;

“(d) Failing to place features into the vehicular approach

to the crosswalk sufficient to protect plaintiff from being

struck; and,

“(e) Failing to respond with appropriate and well known

safety repairs to the dangers of the crosswalk once they

had become known.”

The city’s motion for summary judgment did not

put at issue plaintiff’s ability to prove those specifications of

negligence. The only issue raised in the motion was whether

discretionary immunity bars plaintiff from recovering on

his claims against the city. Consequently, for purposes of

this appeal, we assume that the city was negligent in each of

the manners alleged. Garrison v. Deschutes County, 334 Or

264, 272, 48 P3d 807 (2002) (on review of grant of summary

judgment to a county on the grounds of discretionary immunity,

“we assume that the county, were it a private party,

could have been found liable to plaintiffs for their injuries”).

The sole question is the city’s entitlement to discretionary

immunity for those assumedly negligent acts and omissions.

ORCP 47 C; Eklof v. Steward, 360 Or 717, 731, 385 P3d 1074

(2016) (the only issues properly before a court on summary

judgment are those raised in the motion for summary judgment);

Two Two v. Fujitec America, Inc., 355 Or 319, 326,

325 P3d 707 (2014) (same).

Second, our task on review: The trial court resolved

the issue of the city’s entitlement to discretionary immunity

on summary judgment. On review of a grant of summary

596 Robbins v. City of Medford

judgment, we must view the summary judgment record in

the light most favorable to the nonmoving party—in this

case, plaintiff—and determine whether there are genuine

issues of material fact and whether the city, as the moving

party, is entitled to judgment as a matter of law on the

ground of discretionary immunity. ORCP 47 C; John v. City

of Gresham, 214 Or App 305, 311, 165 P3d 1177 (2007),

rev dismissed, 344 Or 581 (2008).

Because discretionary immunity is an affirmative

defense on which the city would have the burden of proof at

trial, summary judgment is “appropriate only if [the city]

establishes all of the elements of the defense as a matter of

law.” John, 214 Or App at 311-12; see also Wieck v. Hostetter,

274 Or App 457, 470, 362 P3d 254 (2015) (explaining what

party who would bear the burden of proof at trial must show

to be entitled to summary judgment). “[O]ur task on appeal,

as circumscribed by our standard of review, is to determine

whether the uncontroverted evidence presented by defendant

in support of [its] motion for summary judgment is such that

all reasonable factfinders would have to find in defendant’s

favor on [its] affirmative defense of” discretionary immunity.

Wieck, 274 Or App at 470. In other words, “we must be

able to conclude that no reasonable factfinder could reject

defendant’s defense.” Id. Because plaintiff’s specifications of

negligence challenge distinct alleged acts and omissions by

the city, we consider the city’s entitlement to discretionary

immunity with respect to each act or omission alleged to

be negligent. See, e.g., Mosley v. Portland School Dist. No.

1J, 315 Or 85, 92-94, 843 P2d 415 (1992) (analyzing defendant’s

entitlement to discretionary immunity with respect

to distinct allegations of negligence); Stevenson v. State of

Oregon, 290 Or 3, 17-18, 619 P2d 247 (1980) (Tanzer, J., concurring)

(explaining that when complaint alleges multiple

acts of negligence, court should determine whether conduct

is immune with respect to each alleged negligent act).3

3 In their briefs to us, the parties have not undertaken to analyze the city’s

entitlement to discretionary immunity with respect to each distinct alleged specification

of negligence. We do so because that is the approach the Supreme Court

has taken in its case law and we understand that to be the required approach. See

Mosley, 315 Or at 92-94 (ascertaining defendant’s entitlement to discretionary

immunity with respect to distinct specifications of negligence); John, 214 Or App

at 312 (explaining that first step in assessing whether discretionary immunity

Cite as 284 Or App 592 (2017) 597

II. ANALYSIS

ORS 30.365(6)(c) immunizes public bodies and

their officers, agents and employees from civil liability for

conduct that “is the result of a choice among competing

policy considerations, made at the appropriate level of government.”

Garrison, 334 Or at 273. Under that provision, a

governmental actor is entitled to discretionary immunity for

allegedly negligent conduct only if three elements are met.

First, the conduct must be the product of a decision. John,

214 Or App at 314 (discretionary immunity does not apply

to nondecisions). Second, that decision must be a policy decision.

Turner v. Dept. of Transportation, 359 Or 644, 652-53,

375 P3d 508 (2016). A policy decision is one that involves the

“assessments of policy factors, such as the social, political,

financial, or economic effects of implementing a particular

plan or of taking no action.” Id. at 653; John, 214 Or App at

312 (“Discretionary policy decisions are those that involve a

balancing of competing policy considerations in determining

the public interest.”). Routine discretionary decisions made

by governmental employees in the course of their day-to-day

responsibilities are not policy decisions. John, 214 Or App at

312. Third, the decision must have been made by a governmental

decision-maker with the authority to make that type

of policy decision. Garrison, 334 Or at 274. We turn to our

examination of whether, with respect to each of plaintiff’s

specifications of negligence and each element of the discretionary

immunity defense, the city has established its entitlement

to discretionary immunity as a matter of law.

A. Allegations with Respect to Crosswalk Location

Specification 13(a) alleges that the city was negligent

in placing a marked crosswalk at the location where

plaintiff was injured. As we explain, there are factual disputes

regarding the decision-making process that led to the

placement of the crosswalk at that site. Those factual disputes

preclude summary judgment on the issue of discretionary

immunity. See John, 214 Or App at 313-14 (conflicting

evidence regarding the decision-making process that led

applies is to “ascertain the nature of the decision or action involved” in the light

of the particular challenge made by the plaintiff).

598 Robbins v. City of Medford

to the painting of a crosswalk precluded grant of summary

judgment to city on discretionary-immunity grounds on

plaintiff’s claim that city was negligent in placing crosswalk

where it did).

On the one hand, the evidence tends to suggest that

the city, through the proper governmental decision-maker,

did, in fact, make a policy decision to locate a crosswalk at

the intersection in question. According to that evidence, the

city, by ordinance, has delegated the authority to make decisions

about the location and design of crosswalks to its public

works director. Cory Crebbin is the city’s public works director

and, in February 2009, he decided to paint the marked

crosswalk at the location where plaintiff was injured. At the

same time, he decided to remove a marked crosswalk that

had been located on the north side of the intersection since

2003. Crebbin made those decisions after receiving a recommendation

from the city’s Traffic Coordinating Committee

(TCC), which is charged with advising the public works

director about matters of pedestrian and vehicular traffic.

The TCC, which had received complaints about the existing

crosswalk, recommended the removal of that crosswalk and

the painting of a new crosswalk at the location where plaintiff

was injured. It made that recommendation in the hopes

of reducing conflicts between pedestrians and vehicles turning

left onto South Riverside Avenue from Ninth Street.

Crebbin reviewed the TCC’s recommendation, and determined

that it was consistent with the Manual for Uniform

Traffic Control Devices (MUTCD) and also comported with

his own engineering judgment. Based on that assessment,

Crebbin chose to implement the TCC’s recommendation by

removing the existing crosswalk and repainting it on the

opposite side of the intersection.

On the other hand, the evidence submitted by plaintiff

in opposition to the city’s motion suggests a different

version of events. That evidence would permit a reasonable

factfinder to find that the crosswalk’s location was not the

product of a policy decision, or, at a minimum, would permit

a reasonable factfinder to reject the city’s contention that it

was the product of a policy decision. In particular, plaintiff

submitted an affidavit from Anne McLoy, a television news

reporter in Medford. In it, McLoy testified that a few months

Cite as 284 Or App 592 (2017) 599

after plaintiff’s accident, she interviewed Crebbin about

pedestrian accidents in Medford generally, and about plaintiff’s

accident in particular, for a story that she was doing

on Medford pedestrian accidents. In response to McLoy’s

question as to why so many Medford crosswalks were faded,

Crebbin told her that “research has shown that painting a

crosswalk can actually increase the number of pedestrians

hit by cars.” Crebbin also told McLoy “that the crosswalk

that [plaintiff] was struck in, the one on 9th and Riverside,

is clearly marked, but [that] it is actually dangerous and, in

fact, it really was never supposed to be there.” Crebbin said

that city engineers had “missed it in the City’s renovation

plans, but when they suggested removing it, it was determined

to leave it and mark it better.”

Crebbin’s statements to McLoy, which would be

admissible against the city at trial as admissions of a

party opponent,4 create a factual dispute as to whether

the city, through its delegated decision-maker Crebbin,

actually made a policy decision to locate a marked crosswalk

at the location where plaintiff was injured. That evidence

would permit a reasonable factfinder to find that

the crosswalk’s location was more a product of mistake or

inadvertence than of the weighing of policy considerations

required for discretionary immunity to apply. At the very

least, McLoy’s testimony would impeach Crebbin’s testimony

(assuming he testified consistently with his affidavit

that was submitted in support of the city’s motion for

summary judgment), and allow a reasonable factfinder

to have doubts about the nature of the city’s decisionmaking

process for locating the crosswalk and, based on

those doubts, reject the city’s discretionary-immunity

defense. See Washington v. Taseca Homes, Inc., 310 Or

783, 789-90, 802 P2d 70 (1990) (noting “that a party-

4 Under OEC 801(4)(b)(D), Crebbin’s statement to McLoy would be admissible

against the city because it is “[a] statement by the party’s agent or servant

concerning a matter within the scope of the agency or employment, made

during the existence of the relationship.” See Andrews v. R.W. Hays Co., 166 Or

App 494, 499-500, 998 P2d 774 (2000) (discussing when statements of an organization’s

employees are admissible as admissions of the organization in a case

against the organization). It is undisputed that, by ordinance, Crebbin is the city

employee with the delegated responsibility for the city’s crosswalks. Thus, his

statements about the crosswalk are ones “concerning a matter within the scope”

of his employment.

600 Robbins v. City of Medford

opponent’s statement may have dual probative value * * *

both to prove what did not occur and to show defendant’s

prior inconsistent statement on that subject”). For those

reasons, there is a genuine issue of material fact as to

whether the city’s decision to place a crosswalk at the location

where plaintiff was injured is protected by discretionary

immunity. As a result, the trial court erred in concluding

that the city was entitled to summary judgment with

respect to the first specification of negligence against the

city.

We also conclude that the trial court erred in granting

summary judgment to the city with respect to plaintiff’s

specification 13(b). That specification alleges that the city

was negligent in failing to remove the crosswalk after city

engineers advised the city to do so. As noted above, because

the city did not challenge those allegations in its motion for

summary judgment, we assume the truth of them—that is,

that the city engineers in fact advised the city to remove the

crosswalk in which defendant was hit but that the city did

not do so. Nothing in the city’s summary judgment evidence

addresses those allegations; the only evidence in the record

about the removal of a crosswalk is the evidence regarding

the decision to remove the previous crosswalk on the other

side of the intersection. Thus, the city simply has not made a

case for discretionary immunity with respect to the second

specification of negligence and, consequently, is not entitled

to summary judgment on discretionary-immunity grounds

as to that allegation.

B. Allegations with Respect to Crosswalk Design

Plaintiff’s third, fourth, and fifth specifications

of negligence, specifications 13(c), 13(d), and 13(e), challenge

the crosswalk’s design.5 Plaintiff alleges that the city

5 Plaintiff’s fifth specification of negligence is ambiguous. It alleges that

the city was negligent in “[f]ailing to respond with appropriate and well known

safety repairs to the dangers of the crosswalk once they had become known.”

Although the reference to “repairs” could be construed to suggest that plaintiff

was alleging that the city was negligent in its routine maintenance of the crosswalk,

the parties appear to have treated this allegation as challenging the crosswalk’s

design and the city’s failure to incorporate additional safety features into

that design. For that reason, we construe the fifth allegation as a challenge to the

crosswalk’s design.

Cite as 284 Or App 592 (2017) 601

was negligent in omitting certain safety features from its

design. The city argues that it is entitled to summary judgment

as to those specifications because the uncontroverted

evidence in the summary judgment record establishes

that the crosswalk’s design—including the safety features

that it does and does not have—is the product of a policy

decision made by Crebbin in 2010, approximately one year

after the crosswalk was installed at the location of plaintiff’s

accident.

We agree with the city. According to the city’s

uncontroverted evidence, a year after the installation of

the crosswalk, Crebbin received a recommendation from

the TCC that the city should install additional pedestrian

safety measures at the crosswalk. The TCC recommended

painting a “ ‘STOP bar’ on the pavement 20 feet south of the

subject crosswalk and ‘Stop Here for Pedestrian’ signs on

both sides of Riverside Avenue.” The TCC advised against

pedestrian actuated lights at the crosswalk because of concerns

about effectiveness, expense, and the potential impact

of such lights on the traffic flow on Riverside Avenue. After

receiving that recommendation, Crebbin conducted his

own assessment of what safety measures to install at the

crosswalk, with the assistance of Alex Georgevitch, the

city’s transportation manager and engineer. In particular,

Crebbin investigated whether to install pedestrian actuated

lights in the crosswalk or to, instead, accept the TCC’s

recommendation to address safety issues with a painted

stop bar and additional signs. Ultimately, Crebbin chose

to accept the TCC’s recommendation—which he had determined

otherwise complied with the MUTCD—because

of policy considerations: the cost of the lights, their likely

effectiveness, and the process of obtaining approval from

the state to install the lights. Thus, at the time of plaintiff’s

accident, the safety features in place at the crosswalk were

the product of Crebbin’s policy decision. Because it is undisputed

that Crebbin had the delegated authority to make

that decision, the city has established that it is entitled to

discretionary immunity as a matter of law with respect

to plaintiff’s third and fourth specifications of negligence.

See Mann v. McCullough, 174 Or App 599, 607, 26 P3d 856

(2001), rev den, 334 Or 631 (2002) (affirming a directed

602 Robbins v. City of Medford

verdict on discretionary-immunity grounds on negligence

claim where undisputed evidence showed traffic control

choices were the result of city’s delegated policy decisions).

In arguing for a contrary conclusion, plaintiff points

to his ORCP 47 E affidavit, which avers that plaintiff has

an expert who will testify in such a way as to give rise to

an issue of material fact. But, in this case, the city’s claim

to discretionary immunity is dependent on the historical

facts—the city’s theory of defense is that Crebbin, its delegated

decision-maker, made a policy decision about what

safety features the crosswalk should include. Whether or

not Crebbin made the policy decision that the city claims he

made is not a matter that is susceptible to proof by expert

testimony. Under those circumstances, plaintiff’s ORCP

47 E affidavit is insufficient to preclude summary judgment.

As we have explained,

“If the point or points put at issue by a * * * summary

judgment motion could not conceivably be proven through

expert testimony, but necessarily would require proof by

testimony from witnesses with personal knowledge, then

an ORCP 47 E affidavit will not, on its own, preclude summary

judgment.”

See Hinchman v. UC Market, LLC, 270 Or App 561, 572, 348

P3d 328 (2015).6

Consequently, the trial court correctly granted summary

judgment to the city with respect to plaintiff’s third,

fourth, and fifth specifications of negligence.

6 This does not mean that an ORCP 47 E affidavit will never suffice to preclude

summary judgment on an issue of discretionary immunity. In some cases, it

may. For example, if a governmental entity were to claim discretionary immunity

in connection with a claim for negligent crosswalk design by contending that the

design was the product of its policy decision to adopt the MUTCD, then an ORCP

47 E affidavit could suffice to create a factual dispute. That is because, in such

a case, the governmental entity’s claim for discretionary immunity would fail if

the crosswalk’s design did not, in fact, comport with the MUTCD, and the issue

of the design’s compliance with the MUTCD is one that is susceptible to proof by

expert testimony. See McComb v. Tamlyn, 173 Or App 6, 14-15, 20 P3d 237 (2001)

(conflicting expert testimony about whether intersection’s design complied with

MUTCD where state argued that adopting MUTCD was a policy choice precluded

directed verdict for the state on discretionary immunity grounds). As always,

whether an ORCP 47 E affidavit suffices to preclude summary judgment depends

on the particular facts of the case, including the plaintiff’s theory of the case, the

defendant’s theory of defense, and the particular issues raised by the motion for

summary judgment.

Cite as 284 Or App 592 (2017) 603

For the foregoing reasons, we affirm the trial court’s

grant of summary judgment to the city with respect to the

specifications of negligence alleged in paragraphs 13(c),

13(d), and 13(e) (the design allegations) of the complaint,

but reverse with respect to the specifications of negligence

alleged in paragraphs 13(a) and 13(b) (the location allegations)

and remand for further proceedings with respect to

those allegations.

Reversed and remanded for further proceedings

with respect to specifications 13(a) and 13(b); otherwise

affirmed.